#### Yerkes *et*al. *versus*Wilson.

_ 1. The employment of puffers by owners, to bid up property, selling at auction with a view to raise the price on *bona fide*bidders, is a fraud upon them, and will avoid the sale at the option of the purchaser.

2. It is upon the ground of fraud committed on the bidder that the sale is invalidated; and in the trial of such question of fraud, every circumstance or fact from which a legal inference of fraud may be drawn is evidence.

3. Different lots of real estate of the same owners were exposed to sale at public auction on the same day and place, the fact that a number of the lots were run up by puffers and struck off to them with the understanding that they should not take them, was evidence that there was underbidding on another lot struck down to a *bona fide*bidder.

4. A reservation in conditions of a public sale to the owners of an open bid: for themselves is proper; a secret bid at their instance in contravention of it is-fraud.

5. If an inaccuracy occur in a general statement by a judge of the evidence' in its details, counsel should call his attention to it and should he persist in it there is a good reason for exception.

January, 1870.

Before Thompson, 0. J., Read, Sharswood,, and Williams, JJ., Asnew, J., at Nisi Prius.

Error to the Court of Common Pleas of *Chester County..*Of January Term, 1870.

This was an action of assumpsit, brought February 25th,, 1868, by Joseph P. Wilson against John D. Yerkes and George J. Jones, trading as Yerkes & Co. The suit was to recover $1645.33, being the first payment of the purchase-money for a tract of land containing about 233 acres, ofT *10•which the defendants were the owners, struck down to the plaintiff on this bid for $32,906.75 at public auction. The tract thus struck down was part of a very large tract known as the “ Avondale property,” belonging to the defendants, which had been divided into different portions of various quantities. All the tracts were advertised to be sold on the same day and place and were thus all exposed to sale on the 1st of December, 1866.

The allegation of the plaintiff was, that the property had been run up on him by underbidders. When the deed was tendered to him he refused to accept it and make payment and deliver securities for the remainder of the purchase-money ; he brought this suit to recover back the first payment. The part struck down to plaintiff was known as the “ Mansion tract.”

The case was tried November 9th, 1869, before Butler, P. J.

The plaintiff gave in evidence the conditions of the sale of No. 1, the mansion tract.

One was, that the highest and best bidder should be the purchaser, the vendor reserving one open bid.

Another, that on the property being struck down the purchaser should pay 5 per cent, of the purchase-money or give his note for it payable in 80 days.

Indorsed on the conditions was the acknowledgment of the plaintiff, under his seal, that the mansion tract was bought by him at $141 per acre, and that he-owed Yerkes *&*Jones $32,906.75, to be paid by a note at 30 days for $1645.33, a bond and mortgage first lien for one-half of the whole purchase-money, and the balance of the purchase-money on the 1st of April then next.

Also: Note dated December 1st, 1866,payable in 30 days, for $1645.88, the first payment and receipt of plaintiff indorsed for the payment of the note January 16th, 1867.

Also: Letter from plaintiff to Yerkes, dated February 19th, 1867, complaining of underbidding, and saying further:

“ The body of the property, ‘ Avondale,’ I mean, belongs as before to Jones & Yerkes, and not at all to the parties that it was struck down to. Therefore my project of starting the place is worth nothing, unless I do it myself, because in many there is strength in this kind of business. For these and many other reasons which I can give you of a similar kind, .and which I beg to do at any convenient season, I ask and expect to be placed just where I was on the 80th day of November, 1866, so far as any connection of mine with ■‘Avondale.’ Please excuse this hasty note; it is the result ■of a careful, deliberate investigation of the whole matter. I feel it is right in all respects, and not unjust to any *11under all the circumstances. It is a course I am very sorry to pursue, more particularly at this late day, but the reason of that is that I never dreamed but what all was right, until Thursday morning of last week you let it out to me, when the deeds had to be prepared. Since then I have examined the matter and I meditated upon it fully, and have fixed my conclusion as herein stated.”

For the plaintiff, Chandler Hall testified: “ I had no knowledge of underbidding at the time of the sale, but had since; it did not relate to the mansion tract; was present when Jones, Yerkes, Henry Tagg, and Gf. W. Brown were together, somewhere between sale and April 1st, 1867, there was then a consultation in relation to this sale.”

1. The plaintiff then proposed to show what was said by the defendants or by any one in their presence in respect generally to the sales that day, tending to show underbidding.

The question was objected to by the defendants, admitted by the Court and a bill of exceptions sealed.

Witness : “ It was understood Mr. Wilson had bought the property permanently. Brown aud Vanhorne bought property they were not expected to take; Brown, Jones, Yerkes, Tagg, and Vanhorne had gone together to the sale; I said Brown, Tagg, and Vanhorne did not want any of the property ; defendants said that these men had been taken there to bid the property in for them unless it went to a certain price. Defendant said the property sold to Mr. Wilson had gone above the price fixed and therefore they thought it was sold permanently; they had fixed $140, he bid that and immediately after $141.”

Harvey Phillips testified: “ I was at the, sale ; was not a bidder at the mansion tract; bid at the bark mill.”

2. ' The plaintiff proposed to inquire whether it was struck off' to one of the men brought up to bid, referred to by Chandler Hall.

The question was objected to by defendants, admitted by the Court, and a bill of exceptions sealed.

Witness: “ I think it was E. D. Vanhorne who bid against me, and when it was knocked off it went to over $8000. There were several bids at the mansion tract; did not see any one bid at it.”

Jesse Sharpe testified that he bid for the whole Avondale property, but did not bid on the parts of the estate.

3. W. S. Thompson, under objection and exception, testified : “ I bid for a small part; I bought the property in for Yerkes; he requested me to .buy it for him at a certain price; there was more than one bid ; I did not take it. I was in the *12room when the’sale was held; there were three or four strangers from the city ; Yerkes had introduced them; Jones was in the room ; I knew plaintiff was bidding; there were many bids at the mansion tract; saw no one bidding but plaintiff. Jones said nothing to me about the part struck down to me for Yerkes.” ■

John Boyd testified: “I was coming from Philadelphia to Avondale the night before the sale; saw Jones and three others with him, one was Vanhorne; I think Brown was one.”

James Watson testified: “Saw Brown, Tagg, and Vanhorne at the sale; they came out with Jones the night before the sale, and stayed with Yerkes. The Valley tract and the smith shop were strhck off to Tagg ; the London tract was struck off'to Brown ; the mill property on railroad was struck off to Vanhorne at $8000.”

It was admitted that the property was offered a second time by defendants; that no deeds were made to Tagg, Brown, Vanhorne, nor Thompson.

Plaintiff testified: “ Tagg, Brown, Vanhorne, and Jones came to Avondale in. the cars the evening before the sale. I made first bid, $125 ; it went up at $1 bids pretty readily to $140 ; on the opposite side'of the room were Jones, Brown, and Tagg; Brown was near me: I thought it was Brown who w;as bidding against me; I had not the slightest idea that Brown and others were underbidders; first time I had evidence of it, was in February ; when asking Yerkes about the water-power on Brown’s purchase, he said there would be no difficulty in getting a right there; he then informed me that the property belonged to the concern, also the Valley farm .and others ; he acknowledged that they were not there as purchasers, but to protect the property; I asked whether these same men were bidding against me; he said he supposed they did bid some. Yerkes said if I was not satisfied I would be relieved. I charged that Brown had run the property up on me, and he admitted it.”

The plaintiff rested.

For the defendants, the testimony of Pusey Nichols, the auctioneer, taken before arbitrators, was read from the notes of counsel, he being dead: “ The whole tract was first put up; the plaintiffs, Josiah Phillips and Jesse Sharp, bid at it.” After designating a number of tracts which were struck off to diffei’ent persons whom he named, witness said: “ Tagg bid off the smith-shop, also a tract of 152 acres; 141 acres were struck down to Brown ; the mill property was struck off to Vanhorne ; Harvey Phillips started this and was the next to the last bidder ; the mansion tract was struck off to plaintiff *13at $141 per acre; it was started at $125 ; Harvey Phillips, Josiah Phillips and plaintiff bid at it. I do not think that there were any other bidders; Tagg might have bid at it, but I don’t 'know; I don’t recollect that Brown bid at it, he might have; the owners had a bid on the mansion tract and on all the others what they would take; these prices were not publicly proclaimed ; I do not know from the owners or any one else of any underbidding on the mansion tract. Tagg, Brown, and Vanhorne (and others named) were at the sales ; all the prices came up to the list mark but one ; plaintiff had the list of the prices; $140 per acre for the mansion tract was the price on the list.

Mr. Monaghan testified also that plaintiff had the list.

The following was the defendant’s point, and the answer of the Court:

“ The action in this case is in the nature of a bill in equity to set aside a written agreement and obligation under seal, on the ground of fraud ; the evidence of fraud must be plain, clearly made out by satisfactory proofs and such as will strike all minds alike as being unquestionable and free from all doubt; the evidence in this case is not of such a character.”

Answer: “We cannot charge the jury as requested in this point. If a fraud was practiced upon the plaintiff, such as he alleges, the contract did not bind him ; at *law*it was void, or voidable at his option. And whether such, fraud *was*practiced upon him is a question for the *jury.*

“ Of course the plaintiff must make out his case, the burden is upon him; he must *prove*the fraud by evidence that is *dear and*convincing, or the verdict must be for the defendant. But we cannot say that there is no such evidence to submit.”

The Court, after referring to the evidence, charged:

“ The case presents the single question : Was the plaintiff so deceived and imposed upon as he alleges? . Was the property run up on him by underbidding or puffing, at the instance of the defendants ? If it was, a fraud was practiced upon him and the sale did not bind him.

“ What is the evidence bearing on this question ?

“ The plaintiff, Mr. Wilson, himself appearing as a witness, testifies that the sale of this tract took place at the public house in Avondale, near by ; that the crier stood in the door and the people within the room, which was crowded; that on the opposite side from him were Mr. Jones, Mr. Brown and Mr. Tagg; that Brown, he thinks, was near him ; that he, Wilson, started the property at $125 per acre and that it went up at $1 bids pretty readily to $140 ; that he made several bids; that he thought it was *Brown*who was bidding *14against him; thought so at the time ; had no idea that he or others were *underbidders ;*saw Brown nod to the crier and the crier raised the bid every time he did so ; that the first time he had any evidence that there was underbidding,was about the middle of February ; that he went to the property to prepare for drawing the deeds ; saw Mr. Yerkes, and in referring to adjoining tracts struck down to Brown and others, was informed that they were still owned by Yerkes & Jones, were not sold; that Mr. Yerkes acknowledged that these men, Brown, Tagg, and Vanhorue, were not there (at the sale) as purchasers, but to protect the property ; that he, the witness, asked who his opponents in bidding, were, whether these men had been bidding against him, that he understood them to be the opposite bidders ; and that Mr. Yerkes replied, he supposed they did bid some; that he, Wilson, said he supposed Brown was the man who wanted his property; and Mr. Yerkes said Brown did not come there as a purchaser, but was a bidder; that he, Wilson, replied directly, that he was not satisfied ; the property had been run up on him he thought; that Mr. Yerkes said distinctly if he was not satisfied he should be relieved; that his conversation at first was sharp, charging that Brown had run the property up on him, and Mr. Yerkes admitted it.

1. “ [Such, in substance, is the testimony of the plaintiff. The defendants did not either of them appear as’witnesses; and we have not, therefore, the benefit of their statements.]

“But it is urged that Mr. Wilson is not to be credited : first, because he is *interested*to the whole amount involved ; and second, because he is contradicted. That he is the plaintiff in the cause and thus interested, must be borne in mind in considering what he has said. While the law admits parties to testify, it casts upon the jury the duty of weighing their testimony and judging in how far they should be credited. Such testimony should be examined with great care; and where it is inconsistent with probabilities or surrounding circumstances or with other disinterested unimpeached testimony, it should have little weight, or be wholly disregarded. You will judge whether the plaintiff’s statement in this case is consistent and probable and whether it is materially contradicted by other testimony. Your attention has been called to the /act that the plaintiff states that he did *not*bid $140 and directly thereafter $141; and that he was *not*informed by the crier that the former bid was his; and that he did *not*then say that he had a partner in that bid, but was now going alone ; that nothing of this kind *15took place. And that Mr. Nichols, the crier, and Mr. Monaghan, the defendant’s agent conducting the sale, testify that this *did*occur. And also that Mr. Wilson testifies that he did *not*see the list of prices, fixed on the several tracts by the defendants, prior to the sale; while Mr. Nichols and Mr. Monaghan say he *did*and state how they know it.

2. “ [You will also bear in mind, in this connection, the further testimony of Mr. Nichols that *he*knew of no underbidding ; that he did not know of any one bidding at the property but Mi\ Wilson, Mr. Phillips, and Mr. Sharp; that he does not think any one else bid; that Tagg might have bid; that Brown might have bid; but he does not think they did. But in looking at the testimony of Mr. Nichols you will judge in how far *his*recollection or knowledge is to be depended upon, in view of the fact that both Mr. Phillips and Mr. Sharp testify that they did *not*bid at this property.]

“ Now turning to the other side, you will inquire whether the testimony of Mr. Wilson stands alone, or whether it is *corroborated*and *suvforted.*Is there other testimony showing or tending to show, that the defendants had persons at the sale acting as puffers or underbidders; and that these persons puffed or underbid this particular tract? Dr. John Boyd says he came up from Philadelphia in the train the evening before the sale and that one of the defendants, Mr. Jones, was in the car with three other men, one of them being Mr. Vanhorne, another Mr. Brown, he thinks, and the third he does not know.

“ James Watson testifies, among other things, that Henry Tagg, George W. Vanhorne and Mr. Brown came out the night before the sale with Mr. Jones, remained until next day after the sale and stayed while out with Mr. Yerkes.

“ Chandler Hall testifies that in a conversation with the defendants about the property, after the sale, they told him that Brown, Tagg, and Vanhorne were not expected to take the property they bought; both Jones and Yerkes said this; that Mr. Jones said they expected Mr. Wilson to take the property he bought, but the others were not expected to.”

The Judge recapitulated the testimony of Hall.

3. “ [That these men, Brown, Tagg, and Vanhorne, were at the sale ; that they bid at parts of the property ; that a considerable portion of it was struck down to them; and that they did not afterwards pay for it, or take it, is testified to by several witnesses, and, I believe, is not controverted by the defendants.]

4. “ [Still the presence of these men at the sale, as under-bidders or puffers (if they were such), and their bidding at other parts of the property than that purchased by the plain*16tiff, would be *loholly*unimportant, if they did not underbid or puff *this part also.*The purpose for which these men attended the sale and their conduct in reference to other parts of the property, can *only*be considered with a view to drawing proper inferences — shedding light upon the question *whether*they bid at this part of the property also. If they did *not,*then, as I have before remarked, their presence and conduct at the sale is *wholly*immaterial......]

“ Now it is for you to judge, from this evidence, whether the inference is or is not reasonable that the opposition bidding to Mr. Wilson, or some of it, came from these men? If they were taken to the sale as underbidders or puffers, and did underbid or puff other parts of the property, and were in the room from whence the' bidding at the tract struck down to the plaintiff came, you will say whether it is or is not reasonable and proper to infer that they bid at this property also; and you will thus judge whether the testimony of the plaintiff is corroborated and sustained or not.

5. “ [You will not, of course, forget in this connection the testimony of Mr. Nichols, before referred to, in which he says he does not think either Brown, Tagg, or Vanhorne bid at this tract; but that Brown or Tagg may have. And also will not forget that Mr. Phillips and Mr. Sharp testify that he (Nichols) is wrong in saying that *they*bid at it.]

6. c< [Now, in conclusion, does *the*evidence satisfy your minds fully that the defendants procured the property, purchased by the plaintiff, to be *run up on him by underbidding or puffing,*as he alleges ? If it *does,*he is entitled to recover the amount paid them before the fraud was discovered. If the evidence does *not*fully satisfy your minds that the property was so run up on him, your verdict will be for the defendants, bearing in mind that the *burden of proof*is on the *plaintiff,*who must make out his case by plain, convincing evidence.”]

The verdict was for the plaintiff for $1926.03.

The defendants took a writ of error.

They assigned for error:

1-3. The admission of the evidence mentioned in the several bills of exception.

4. The refusal to affirm the defendants’ points.

5. The part of the charge in brackets, marked 1.

6. The part of the charge in brackets, marked 2 and 5.

7. The part of the charge in brackets, marked 3.

8. The part of the charge in brackets, marked 4.

9. The part of the charge in brackets, marked 6.

10. The charge was manifestly inadequate to the case, and ■misled the jury.

*176r. *F.*Smith, *B. M Monaghan*and *B. Frazer Smith,*for plaintiffs in error.

*W. Mae Veagh*and J. *II. Brinton*for defendant in error.

Mr. C. J. Thompson

delivered the opinion of the Court, March 21st, 1870.

The assignments of error in this case furnish but little grounds for discussion. It is not denied but that puffers, employed by the owners of property which is to be sold at auction to bid it up, with a view to raise the price upon ¿«roa *fide bidders, is*a fraud upon such bidders, and willmvalidate the sale, at the option of the purchaser. That this is so, see 9 Casey, 251 ; 1 S. & R., 86 ; 5 Mad. R., 37, 440 ; 3 C., 112; 12 Vesey, 483 ; 1 Fonb. Eq., 227 (n.); 2 Kent’s Com,, 423. Other authorities might be cited, *ad infinitum*almost.

It is upon the ground of the fraud committed on the *bona hde*bidder by the puffers that the sale is invalidated. The consequence is, that in the trial of the question of fraud raised upon such an allegation, unless it be openly avowed by the seller after the sale, which does not often occur, the party alleging it may only be able to prove it by connecting together numerous facts and circumstances. Like every other investigation to discover fraud, therefore, great latitude of proof is allowed. That is to say, every circumstance or fact will be evidence in such an issue from which a legal inference of the fact of fraud may íce drawn. This is a well-settled rule.

The plaintiff below furnished a body of evidence to establish his allegation of the employment of puffers at the sale of their property by the defendants; and direct and inferential as to that portion of it bid off by him, that, in our opinion, fully justified the finding of the jury. Every portion and parcel of it was legal, and it constituted an unbroken chain of circumstances. Three men came from Philadelphia with one of the owners of the property the evening before the sale, remained over night with the defendants, and the next day engaged actively in bidding at the sales, and none of the property struck down to them was taken by them, nor were they ever required to take it. Thus were they engaged bidding on the portions of the property sold prior to that bid in by the plaintiff. This, of course, was calculated to induce the plaintiff to regard them as real bidders, aud the property desirable. The testimony is, that one of them bid on the property in question several times, and up to within a bid (as the testimony of the plaintiff *18himself' shows), of that at which the property was struck down.

Now in order to ascertain the object of these bids, and to corroborate the testimony that one of these men raised the price on the property bid in by the plaintiff, testimony was offered and received to show that one or other of the men named bid on most of the other portions of the property on sale, subdivisions of the land of which the portion bid on by the plaintiff was one, in order to raise the prices on real bidders. If they acted as puffers in all or most of the other portions on sale, it would be almost incredible that they did not do the same thing in regard to the plaintiff’s portion. The former fact being established, and it was so beyond a question, it would not be a strained presumption that those of them that bid on the plaintiff’s purchase were acting in the same capacity. The bidding was in a crowd, and generally by a nod or sign; the testimony would have been proper, therefore, if there had been no direct testimony that one of them did bid, after the testimony showing them puffers as to other portions on sale. Their bidding was, however, admitted by the defendants, and if the plaintiff testified truly, the facts in regard to the character in which it was done, in the instance of the plaintiffs, was corroborated by their bidding on the other parts of the property. In this aspect the testimony of Phillips that one of them bid against him until he ceased bidding, and it was struck down to the latter. He was asked if it was one of the men Hall described as coming from Philadelphia with one of the defendants. This' was not open to objection on any ground, although it is the foundation of one of the assignments of error.

These bids for the mere purpose of raising the price on real purchasers was in direct violation of the terms of sale, on which the vendors reserved an open bid on each portion of property for themselves. They were all for them. The reservation was right enough, but secret bids in contravention of it, at the defendant’s instance, was a fraud. The objection to the testimony of Thompson, for like reason, was untenable. There was no error in the ruling of the learned judge as to the admission of either of the offers of testimony.

The first exception was not insisted on, nor were the fifth and tenth assignments of error.

A more dispassionate and impartial charge in a controverted case on facts has seldom been presented. We do not suppose that in pi’actice any j udge, referring to testimony in a general way, and then leaving it all for the free action of' the jury, is ever to be regarded as undertaking to be strictly *19accurate in details, as lie is expected to be, when he gives a binding instruction on the testimony. If the facts are left to the jury it is for them to be accurate. The responsibility is on them. That is their sworn duty, even if an inaccuracy should appear in a recapitulation of the testimony by the judge. If an error be committed in this sort of reference by the judge, counsel ought to call his attention to it, and if after that it is persisted in, then there arises a good reason for an exception. That was not done here. But, in fact, the matter alleged as error in referring to the testimony of Nichols, we think is fully sustained by the testimony referred to by the learned judge, as-well as the testimony of the witnesses who seemed to contradict it. But with the remarks made, which are complained of as error, the judge left the jury free to take or not to take that view of it. This his general charge shows very satisfactorily*.*

We entirely agree that the learned judge was'not bound to answer the defendant’s points in the words of it. Had he done so it would have been error. He would not have been justified in passing on the testimony, and saying whether it was of the character claimed for it in the point or not. It was for the jury to say what its character was; whether it established the plaintiff’s case or failed. It was a case at law and not in equity. The answer to the point was every way correct. “ The plaintiff must prove,” says the charge, *“*the fraud by evidence that is clear and convincing, or the verdict must be for the defendant; but we cannot say that there is no such evidence to submit.” This was all right, and all that was required to be said.

Judgment affirmed.